Class Action Case Against Facebook for Use of Facial Recognition Technology May Proceed

By a unanimous decision, the U.S. Court of Appeals for the Ninth Circuit ruled that the case of Patel v. Facebook may proceed as a class action on behalf of Facebook users in Illinois under the State’s Biometric Information Privacy Act, 740 ILCS 14/1 et seq . (“BIPA”). For a brief overview of BIPA and its legislative intent, click here.

In its ruling, the Court overtly rejected Facebook's argument that the plaintiffs assert a mere procedural violation of BIPA insufficient to establish legal standing. The Court concluded that using facial recognition technology without consent (as alleged by the plaintiffs) "invades an individual's private affairs and concrete interests." 932 F.3d 1264, 1273 (9th Cir. 2019).

This decision (and others) leave no doubt that the use of biometric information is extremely risky. Each negligent violation could cost a business $1,000 and each intentional or reckless violation could cost $5,000. Anyone doing business in the State or with residents of the State of Illinois should proceed with extreme caution.

If your business uses, stores or transmits fingerprints, facial recognition, or similar biometric information, consider having Lavelle Law review your policies and procedures for compliance with BIPA. If your business has received a demand letter or lawsuit related to a violation of BIPA, contact Brian Massimino at bmassimino@lavellelaw.com or 312-736-1262 and defend your business.